IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JANET M. DEGIOVANNI SHARP : CIVIL ACTION

:

 vs. :

: NO. 05-CV-4297

WHITMAN COUNCIL, INC., :

ROBERT C. BLACKBURN, :

HENRY LEWANDOWSKI and :

MICHAEL SULLIVAN :

MEMORANDUM AND ORDER

JOYNER, J. October 1, 2007

This civil action is once again before the Court for

disposition of the motions of defendants Whitman Council, Inc.

(Docket No. 48) and Robert C. Blackburn, Henry Lewandowski and

Michael Sullivan (Docket No. 49) for summary judgment as to the

remaining counts of the plaintiff’s complaint. For the reasons

which follow, the motions shall be granted in part and denied in

part. 

Factual History

 As we discussed in our previous Memorandum and Order of

August 3, 2006, this case arises out of the plaintiff, Janet

DeGiovanni Sharp’s employment with the Whitman Council, where she 

has been employed as the Executive Director since September,

1991. Whitman Council, Inc. (“Whitman”) is a Pennsylvania NonProfit Corporation which is funded as a Neighborhood Advisory

Committee organization (“NAC”) by the City of Philadelphia’s

Case 2:05-cv-04297-JCJ Document 61 Filed 10/03/07 Page 1 of 17
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Office of Housing and Community Development (“OHCD”) and which

provides services to the Whitman section of South Philadelphia. 

Whitman is governed by a Board of Directors composed of up to

thirteen elected Class “A” members and up to three Class “B”

Directors who are chosen by the Class “A” members. Four of the

thirteen Class “A” Board members serve as the President, VicePresident, Secretary and Treasurer of the Board. The Board of

Directors supervises the Executive Director. Each year, Whitman

enters into a contract, known as an NAC Provider Agreement with

OHCD, pursuant to which Whitman agrees to provide housing and

community development services and activities for Whitman area

residents and OHCD agrees to provide the funding necessary to

allow Whitman to provide those services.

 Prior to August 2004, one of the Whitman “A” Board Members

was a local Catholic pastor. At that time, the pastor “made the

difficult decision to leave the active ministry of priesthood and

because he moved from the area, he was no longer eligible to be a

member of the Whitman Board.” (First Am. Compl., ¶17). 

Plaintiff “formed a deep friendship with the former pastor and

they ultimately married in June, 2005.” (First Am. Compl., ¶18). 

Plaintiff’s relationship with the former priest apparently

generated some controversy in the Whitman community as it was

shortly after he left the church that the defendants began the

pattern of activities which prompted Plaintiff’s complaint in

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this case including: (1) questioning the plaintiff about her

personal relationship with the former priest, ostensibly so as to

discern whether or not the plaintiff had been the victim of

sexual harassment or had violated Whitman’s personnel policies; 

(2) contacting the Director of Neighborhood Coordination for OHCD

about Plaintiff’s relationship in an effort to find grounds to

terminate her; (3) questioning community members and church

authorities about the matter; (4) forming a special investigating

committee and appropriating $2,000 of Whitman’s funding to

conduct an investigation; (5) threatening Plaintiff with

termination for insubordination if she refused to answer

questions regarding her relationship.

Shortly after Plaintiff and her new husband were married, a

church reunion gathering was held in Wildwood, NJ at which some

of the attendees purportedly wore badges and T-shirts mocking the 

Sharps. Despite the defendants’ threats, however, Ms. DeGiovanni

Sharp continues in her employment as the Whitman Council

Executive Director to this day. On August 11, 2005, after

exhausting her administrative remedies with the EEOC and the

PHRC, Plaintiff instituted this lawsuit for having been

“subjected to rumor and innuendo,” “held up to public ridicule,”

suffering a loss of “professional status and reputation” as well

as of “pay, benefits and other employee remunerations,” and

“emotional distress, humiliation and loss of life’s pleasures.” 

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(First Am. Compl., ¶s44-46). Ms. DeGiovanni Sharp sought relief

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§2000e, et. seq., 42 U.S.C. §1981a, the Pennsylvania Human

Relations Act, 43 P.S. §951 et. seq. (“PHRA”), the Pennsylvania

Whistleblower Law, 43 P.S. §1421 et. seq., and under the common

law theories of publication of private information, false light

invasion of privacy, breach of contract, negligent and/or

intentional interference with existing contractual relationship,

negligent and/or intentional misrepresentation and conspiracy. 

 Defendants filed motions to dismiss pursuant to Rule

12(b)(1) and 12(b)(6) and by order dated December 22, 2005, we

partially converted the motions to Rule 56 motions and gave the

parties until February 6, 2006 to take discovery on the issue of

whether the individually named defendants were Plaintiff’s

supervisors and whether the Office of Housing and Community

Development was Plaintiff’s de facto employer. On August 3,

2006, we granted the motions in part and denied them in part

finding, inter alia: (1) that the Office of Housing and Community

Development and the Whitman Council were not so operationally

entangled as to make OHCD the plaintiff’s employer and to give

rise to causes of action under the PHRA, Title VII or Section

1981A; and (2) that plaintiff had not alleged sufficient facts to

support her causes of action under the Pennsylvania Whistleblower

Law, or under the common law theories of false light invasion of

Case 2:05-cv-04297-JCJ Document 61 Filed 10/03/07 Page 4 of 17
 In addition to invoking this Court’s original jurisdiction under 28 1

U.S.C. §1331, Plaintiff also maintains this action pursuant to 28 U.S.C. §1332

providing for diversity jurisdiction since at the time suit was commenced, she

was a resident of Delaware.

5

privacy, negligent interference with contractual relations, and

negligent and/or intentional misrepresentation. By the instant 1

motions, Defendants again seek the entry of judgment in their

favor as a matter of law on all of the remaining claims against

them. 

Summary Judgment Standards

 It is recognized that the underlying purpose of summary

judgment is to avoid a pointless trial in cases where it is

unnecessary and would only cause delay and expense. Goodman v.

Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert.

denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977).

Summary judgment is proper “if there is no genuine issue as to

any material fact and the moving party is entitled to judgment as

a matter of law. Fed.R.Civ.P. 56©. An issue is genuine only if

there is a sufficient evidentiary basis on which a reasonable

jury could find for the non-moving party, and a factual dispute

is material only if it might affect the outcome of the suit under

governing law. Kaucher v. County of Bucks, 456 F.3d 418, 423 (3d

Cir. 2006), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the non-moving

party bears the burden of persuasion at trial, “the moving party

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6

may meet its burden on summary judgment by showing that the

nonmoving party’s evidence is insufficient to carry that burden.” 

Id., quoting Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d Cir.

1998). In conducting our review, we view the record in the light

most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. See, Nicini v. Morra, 212 F.3d

798, 806 (3d Cir. 2000). 

Discussion

Plaintiff has remaining her state law claims for breach of

contract, invasion of privacy for the improper publication of

private facts, intentional interference with existing contractual

relations and civil conspiracy. We address each of these

seriatim.

A. Breach of Contract

 To state a claim for breach of contract under Pennsylvania

law, a plaintiff must allege: “'(1) the existence of a contract,

including its essential terms, (2) a breach of a duty imposed by

the contract[,] and (3) resultant damages.'" Chemtech

International Inc. v. Chemical Injection Technologies, Inc., No.

06-3345, 2007 U.S. App. LEXIS 21697 at *4-*5 (3d Cir. Sept. 10,

2007), quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d

Cir. 2003) (quoting CoreStates Bank, N.A. v. Cutillo, 1999 PA

Super 14, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999)). For a

contract to be enforceable, the nature and extent of the mutual

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obligations must be certain and the parties must have agreed on

the material and necessary details of their bargain. Lackner v.

Glosser, 892 A.2d 21 (Pa. Super. 2006), citing Peck v. Delaware

County Board of Prison Inspectors, 572 Pa. 249, 260, 814 A.2d

185, 191 (2002). “Where, however, there is no agreement or even

a discussion as to any of the essential terms of an alleged

bargain, such as time or manner of performance, or price or

consideration, the ‘agreement’ is too indefinite for a party to

reasonably believe that it could be enforceable in an action at

law.” Id., citing Lombardo v. Gasparini Excavating Co., 385 Pa.

388, 393, 123 A.2d 663, 666 (1956). 

 Generally speaking, an employment manual or other workplace

rules will be deemed a binding contract only where the benefit

sought to be enforced was extended at the time of hire and where

there is evidence by which a reasonable person would conclude

that the employer intended to be bound by its terms. Garcia v.

Matthews, No. 02-3318, 66 Fed. Appx. 339, 342, 2003 U.S. App.

LEXIS 7967 at *7 (3d Cir. April 25, 2003). See Also, Luteran v.

Loral Fairchild Corp., 455 Pa. Super. 364, 372, 688 A.2d 211, 215

(1997)(“It is well settled that ‘to find that...a handbook has

legally binding contractual significance, the handbook or oral

representation must in some way clearly state that it is to have

such effect,’” quoting Martin v. Capital Cities Media, Inc., 354

Pa. Super. 199, 511 A.2d 830, 842 (1986)).

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 In her brief in opposition to these summary judgment motions, 2

however, Plaintiff contends that her deposition testimony was erroneous and

that the terms and conditions of her employment are governed exclusively by

the annual contract between OHCD and Whitman, which renews each year thus

giving her “a continuing contract of definite duration”. (Pl’s Consolidated

Memorandum of Law in Opposition to Defendants’ Motions for Summary Judgment,

p. 3). Then despite this assertion, Plaintiff’s brief then goes on to

“cherrypick” various phrases from all three documents which, she claims

support her assertion that she and the Whitman Council entered into an

employment contract. (“The salaries specified in the Budget are the maximum

salaries which can be paid for the corresponding position, regardless of any

conflicting provisions of the NAC’s personnel policies. The NAC shall notify

the City of changes in any position title or job description.” 1991 Contract

for Professional Services between City of Philadelphia and Whitman Council,

§§II and IV(B)); (“At termination of employment, a permanent employee shall be

paid for accumulated vacation in an amount not to exceed 15 days time...”

Personnel Policies, Exhibit E-4(G)(1)). However, even reading all of these

quoted passages together, we find no specific mention of either the plaintiff

herself or her position and no discussion of mutual promises between Plaintiff

and the Whitman Council such as would constitute valid consideration to

support a binding contract. 

8

In this case, the plaintiff testified at her deposition that

she has an employment contract by virtue of her job description,

employee handbook and the services contract between the City of

Philadelphia (through its Office of Housing and Community

Development) and Whitman Council. Plaintiff further testified 2

that she did not receive any of those documents until after she

was hired and/or began working for the Whitman Council, although

certainly the parties discussed what her general job

responsibilities would be prior to her hire. (Sharp Dep. 3/9/07,

89-92). It thus does not appear that whatever benefits which may

inure to Plaintiff by virtue of these written materials were

extended at the time of Plaintiff’s hire or in consideration for

her acceptance of the directorship position. 

 Regardless, after carefully reviewing all three documents,

we cannot find that they give rise to a valid contract between

Case 2:05-cv-04297-JCJ Document 61 Filed 10/03/07 Page 8 of 17
 Interference with her worker’s compensation claim also appears to be 3

the basis for Plaintiff’s claim for legal damages. As we find that the first

two elements for a successful breach of contract claim have not been satisfied

here, we do not reach the issue of resultant damages.

9

the parties to this litigation. Indeed, there is no evidence

that the plaintiff was ever asked to sign or acknowledge receipt

of an employment contract nor is there any evidence to suggest

that OHCD’s contract with Whitman Council and its accompanying

outline of personnel policies, or plaintiff’s job description

were ever meant to bind Whitman, the plaintiff or the individual

members of Whitman’s Board of Directors to an employer-employee

relationship. 

Plaintiff further submits that the defendants breached her

employment contract by, inter alia, “interfering with her

legitimate Worker’s Compensation Claim,” (for injuries suffered

while lifting heavy food baskets for the poor) and by the 3

individual defendants “coming into the Whitman office ...

demanding ‘her side of the story’ and asking ... personal and

offensive questions about her private life...” (Pl’s

Consolidated Memorandum of Law in Opposition to Defendants’

Motions for Summary Judgment, at p. 9). While plaintiff relies

upon select clauses to make out her contract claim, we can

neither find nor infer the essential terms of a contract from

that recited language. As there is also no evidence of any

discussion as to any of the essential terms of an alleged

bargain, we conclude that the ‘agreement’ is too indefinite for

Case 2:05-cv-04297-JCJ Document 61 Filed 10/03/07 Page 9 of 17
10

either party to reasonably believe that it could be enforceable

in an action at law. Plaintiff also fails to advise the Court as

to which terms of her alleged contract were breached by the

defendants’ actions and we are likewise at a loss to discern what

those terms could possibly be. For these reasons, summary

judgment shall be entered in favor of the defendants on Count VI

of the First Amended Complaint. 

B. Intentional Interference with Contractual Relations

 In our Memorandum Opinion of August 3, 2006, we found that 

Plaintiff had sufficiently pled a cause of action for intentional

interference with existing contractual relations against the

individual defendants Blackburn, Lewandowski and Sullivan in

Count VII of her First Amended Complaint. By their instant

summary judgment motion, the individual defendants now argue that 

this claim also fails as a matter of law because Plaintiff failed

to set forth sufficient evidence to prove such a cause of action

against them. We agree.

The law of Pennsylvania recognizes a cause of action for

tortious interference with contractual relations as having the

following elements:

(1) the existence of a contractual, or prospective

contractual relation between the complainant and a third

party; (2) purposeful action on the part of the defendant,

specifically intended to harm the existing relation, or to

prevent a prospective relation from occurring; (3) the

absence of privilege or justification on the part of the

defendant; and (4) the occasioning of actual legal damage as

a result of the defendant’s conduct.

Case 2:05-cv-04297-JCJ Document 61 Filed 10/03/07 Page 10 of 17
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CGB Occupational Therapy v. RHA Health Services, Inc., 357 F.3d

375, 384 (3d Cir. 2004), citing Crivelli v. General Motors Corp.,

215 F.3d 386, 394 (3d Cir. 2000) and Pawlowski v. Smoro, 403 Pa.

Super. 71, 588 A.2d 36, 39-40 (1991). “Thus a tortious

interference claim does not accrue until, at least, the plaintiff

suffers injury (i.e., “actual legal damage”) as a result of the

defendant’s conduct.” Id. 

Here, we conclude that the plaintiff has sufficiently

demonstrated the first three elements of the tort in that there

is clear evidence that she had an existing employment

relationship with Whitman Council with which the three defendants

unjustifiably attempted to interfere by undertaking an

investigation into the plaintiff’s private life and threatening

her with termination if she did not comply. However, despite the

defendants’ efforts, Ms. DeGiovanni-Sharp remains employed by the

Whitman Council to this day. There is thus no evidence that she

has suffered the actual legal damages requisite to maintaining a

cause of action for tortious interference. Summary judgment

shall therefore also be granted in favor of the defendants on

Count VII of the First Amended Complaint. 

C. Invasion of Privacy by Publication of Private Facts

 It is axiomatic that one who gives publicity to a matter

which concerns the private life of another is subject to

liability to the other for invasion of privacy if the matter

Case 2:05-cv-04297-JCJ Document 61 Filed 10/03/07 Page 11 of 17
12

published is of a kind that (a) would be highly offensive to a

reasonable person, and (b) is not of legitimate concern to the

public. Culver v. Port Allegany Reporter Argus, 409 Pa. Super.

401, 404, 598 A.2d 54, 56 (1991), citing Harris By Harris v.

Easton Publishing Co., 335 Pa. Super. 141, 154, 483 A.2d 1377,

1384 (1984) and Restatement (Second) of Torts, §652D. Stated

otherwise, in order to make out a claim of publicity to private

life, a plaintiff must establish that (1) a private fact was (2)

publicized and (3) that such fact was of a type highly offensive

to a reasonable person and (4) not of legitimate concern to the

public. Santillo v. Reedel, 430 Pa. Super. 290, 295, 634 A.2d

264, 266 (1993). 

 A private fact is one that has not already been made public. 

Jenkins v. Bolla, 411 Pa. Super. 119, 124, 600 A.2d 1293, 1296

(1992). Publicity requires that the matter is made public, by

communicating it to the public at large or to so many persons

that it must be regarded as “substantially certain to become one

of public knowledge.” Gross v. Taylor, Civ. A. No. 96-6914, 1997

U.S. Dist. LEXIS 11657 at *28 (E.D.Pa. August 5, 1997), quoting

Harris, 483 A.2d at 1384. 

In application of the preceding principles to the matter at

hand, we find that sufficient evidence exists on this record that

the defendants did, indeed, communicate and discuss with various

members of the Whitman/Our Lady of Mt. Carmel communities the

Case 2:05-cv-04297-JCJ Document 61 Filed 10/03/07 Page 12 of 17
13

fact that the plaintiff was engaged in a personal relationship

with and eventually married, the former Father Sharp. It further

appears that the defendants also made public that they were of

the opinion that the Sharps’ relationship was violative of, among

other things, Whitman Council’s personnel policies, that money

was missing from both the Mt. Carmel church and the Whitman

Council, and that they were formally investigating Ms.

DeGiovanni-Sharp and this relationship. (See, e.g., Exhibits 1,

2, 4, 5, 14, 16, 21 to Plaintiff’s Consolidated Memorandum of Law

in Opposition to Defendants’ Motions for Summary Judgment). As

we previously noted in our August 3, 2006 Memorandum Opinion, “we

find that the issue of whether the plaintiff did nor did not have

an intimate relationship with a former board member who happened

to be a Catholic priest is a truly private matter in which we can

discern no legitimate public interest.” The motions for summary

judgment are therefore denied with respect to the remaining

portion of Count V. 

 D. Civil Conspiracy

 Defendants also move for the entry of summary judgment on

Count IX of Plaintiff’s complaint which pleads a cause of action

for the state law tort of conspiracy. In support of their

motions, Defendants submit that (1) a conspiracy cannot arise as

a matter of law between a corporation and its employees, officers

and directors acting in their official capacity and (2) there is

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14

no evidence of any unlawful act on the part of the defendants. 

To make out a cause of action for civil conspiracy under

Pennsylvania law, a plaintiff must establish (1) a combination of

two or more persons acting with a common purpose to do an

unlawful act or to do a lawful act by unlawful means or for an

unlawful purpose, (2) an overt act done in pursuance of the

common purpose, and (3) actual legal damage. Skipworth by

Williams v. Lead Industries Association, Inc., 547 Pa. 224, 235,

690 A.2d 169, 174 (1997); Kline v. Security Guards, Inc., 386

F.3d 246, 262 (3d Cir. 2004); McGuire v. Shubert, 722 A.2d 1087,

1092 (Pa. Super. 1998). Proof of malice, i.e., an intent to

injure, is essential in proof of a conspiracy. Skipworth,

supra., citing Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198,

211, 412 A.2d 466, 472 (1979). As a general rule, “a single

entity cannot conspire with itself and, similarly, agents of a

single entity cannot conspire among themselves.” Lackner v.

Glosser, 892 A.2d at 35, quoting Grose v. Procter & Gamble Paper

Products, 866 A.2d 437, 441 (Pa. Super. 2005). See Also, Lee v.

SEPTA, 418 F.Supp.2d 675, 681 (E.D. Pa. 2005)(“An employer and

its officers and employees acting in the scope of their duties

constitute one legal person for purposes of conspiracy law and

therefore cannot conspire together.”). One exception is where

the officer or employee is acting on his own behalf or for

personal reasons and not on behalf of the entity at the time of

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15

the conspiracy. See, Tyler v. O’Neill, 994 F.Supp. 603, 613

(E.D.Pa. 1998), aff’d, 189 F.3d 465 (3d Cir. 1999) citing, inter

alia, Johnston v. Baker, 445 F.2d 424, 426-427 (3rd Cir. 1971);

Doe v. Kohn, Nast & Graf, 862 F.Supp. 1310, 1328 (E.D. Pa. 1994). 

See Also, Mill Run Associates v. Locke Property Company, Inc.,

282 F.Supp.2d 278, 294 (E.D. Pa. 2003). 

Here, the plaintiff alleges that in addition to the evidence

of an “intra-corporate conspiracy,” there is also evidence that

the three individual board members conspired with members of the

International Brotherhood of Electrical Workers (“IBEW”) Local 98 

to investigate and discriminate against her and to interfere with

her receiving worker’s compensation coverage for her injuries and

her work with the WECCACOE housing organization thereby causing

her economic harm. Plaintiff has produced copies of several emails, letters and Whitman resolutions which arguably could

support these claims. (See Exhibits 1,2, 4, 5, 6,,9, 10, 11, 12,

14, 18). We therefore conclude that this issue is best left to a

jury for determination.

Turning to Defendants’ argument that there is no evidence of

the commission of any unlawful act, we note that to be

actionable, civil conspiracy must be based on an existing

independent wrong or tort that would constitute a valid cause of

action if committed by one actor. See, McGreevy v. Stroup, 413

F.3d 359, 371 (3d Cir. 2005); Boyanowski v. Capital Area

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 We note that in our August 3, 2006 memorandum we theorized that 4

Plaintiff may have been trying to allege that the defendants conspired to

unlawfully discriminate against her. Given the Third Circuit’s prediction

that the Pennsylvania Supreme Court would require the dismissal of a civil

conspiracy claim where the underlying tort was not shown, we recognize that

our previous hypothesis may have been erroneous. Boyanski, 215 F.3d at 405-

406. Regardless, as we find that Plaintiff has made a sufficient evidentiary

showing to permit her claim for invasion of privacy to continue and as Count

IX has been broadly pled, we shall permit Plaintiff to proceed under the

theory that the defendants conspired to invade her privacy by publication of

private facts. 

16

Intermediate Unit, 215 F.3d 396, 405 (3d Cir. 2000) citing Nix v.

Temple University, 408 Pa. Super. 369, 596 A.2d 1132, 1137 (1991)

and Pelagatti v. Cohen, 370 Pa. Super. 422, 536 A.2d 1337, 1342

(1987); In re Orthopedic Bone Screw Products Liability

Litigation, 193 F.3d 781, 789 (3d Cir. 1999). As we observed in

our August 3, 2006 Memorandum Opinion the averments in Count IX

“are extremely vague,” but viewing them and the record evidence

now before us in the light most favorable to Plaintiff, we find

it conceivable that a jury could find that the defendants

conspired to invade Plaintiff’s privacy by making public certain

information about her private relationship with the former Father

Sharp. So saying, the defendants’ motion for judgment in their

favor on Count IX is denied. 

4

For all of the foregoing reasons, the defendants’ motions

for summary judgment are denied pursuant to the attached order. 

Case 2:05-cv-04297-JCJ Document 61 Filed 10/03/07 Page 16 of 17
17

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JANET M. DEGIOVANNI SHARP : CIVIL ACTION

:

 vs. :

: NO. 05-CV-4297

WHITMAN COUNCIL, INC., :

ROBERT C. BLACKBURN, :

HENRY LEWANDOWSKI and :

MICHAEL SULLIVAN :

ORDER

 AND NOW, this 1st day of October, 2007, upon

consideration of the Defendants’ Motions for Summary Judgment

(Docket Nos. 48 and 49) and Plaintiff’s Response thereto, it is

hereby ORDERED that the Motions are GRANTED IN PART and DENIED IN

PART and summary judgment is hereby entered in favor of all of

the defendants as a matter of law on Counts VI and VII of the

Plaintiff’s First Amended Complaint. 

In all other respects, the motions are DENIED. 

BY THE COURT:

s/J. Curtis Joyner 

J. CURTIS JOYNER, J. 

 

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